Four years ago, a Washington state court found Ralph Blakely guilty of kidnapping his estranged wife-a crime that typically carried a maximum 4 ½ year sentence. But invoking the authority that the Washington sentencing guidelines give judges to increase sentences in certain circumstances, the judge upped Blakely's sentence to 7 ½ years, finding that he had acted "with deliberate cruelty."

In Blakely v. Washington, the Supreme Court ruled this June that the enhanced punishment violated Blakely's Sixth Amendment right to trial by jury. The decision injected deep uncertainty into sentencing around the country, in particular leaving federal judges in an uproar. Justice Sandra Day O'Connor observed, "This looks like a number 10 earthquake to me."

When the Supreme Court's new term begins next week, it will hear two cases on the federal sentencing guidelines. United States v. Booker and United States v. Fanfan have been fast-tracked to the head of the docket. What should be the court's next move on sentencing?

Douglas A. Berman is a professor at The Ohio State University Moritz College of Law and co-author of a new casebook, Sentencing Law and Policy: Cases, Statutes and Guidelines. Stephanos Bibas is Associate Professor of Law at the University of Iowa College of Law.

Bibas: 9/27/04, 09:05 AM
For about 200 years, judges had broad discretion to sentence a robber, for example, to anywhere from 0 to 20 years. There were no rules or facts that limited the judge's discretion, and often parole or probation officers made the ultimate determination on years later. Similar crimes by similar offenders could receive very different sentences. Critics attacked sentences as arbitrary, racially biased, and dependent on which particular prosecutor or judge handled a case and what he or she had for breakfast that morning.

About 30 years ago, an unlikely coalition of reformers joined forces to guide and constrain judges' sentencing discretion. Liberals wanted a set of rules that would limit disparities based on race, ethnicity, sex, citizenship, education, and wealth. Conservatives wanted higher sentences and constraints on soft-on-crime judges. As a result, about a third of the states created sentencing commissions (administrative agencies composed of judges, lawyers, and professors) which adopted sentencing guidelines with much narrower sentencing ranges. For example, a robber who had been convicted of one prior robbery but did not carry a gun or injure anyone might receive a presumptive sentence of three to five years. If a state judge chooses to sentence above or below this range, he or she must give specific reasons, and an appellate court will review those reasons. The Federal Sentencing Guidelines are even more detailed, mathematical, rigid, and narrow in the discretion they allow (they are Guidelines in name only, but rules in fact). They also call for significantly higher sentences for many more crimes than pre-Guidelines law did. As a result, judges hate the loss of discretion and defense lawyers hate the higher sentences, but prosecutors love being able to tie sentencing judges' hands. Unless, that is, the prosecutor decides to strike a favorable plea bargain that gets around those Guidelines.

The Achilles' heels of sentencing guidelines is that they depend on judges to make complex factual findings at sentencing. For example, a finding that a robber had a gun, or stole over $50,000, will add several more years to the sentence. In other words, these findings wind up raising both the minimum and maximum penalty that the robber faces, unless the judge dares to depart upward or downward and risk reversal by the court of appeals. Judges make these factual findings on their own (without a jury) and don't need to find these facts beyond a reasonable doubt, as jurors do at a trial. Instead, they need only find them by a preponderance of the evidence, meaning that they find them more often than not.

In the last few years, the Supreme Court has steadily challenged this neat division between elements of crimes, found by juries beyond a reasonable doubt, and sentencing factors, found by judges by a preponderance of the evidence. If a fact raises the defendant's statutory maximum sentence, a jury must find it beyond a reasonable doubt. In the Blakely case, decided in June, the Court applied the same rule to state sentencing guidelines adopted by a legislature. The question before the Court now is whether it will treat the Federal Sentencing Guidelines, adopted by an administrative sentencing commission, any differently. Judges and defense lawyers, who have long hated the Guidelines, relish the prospect of dynamiting them.

Most of the commentators think the Guidelines will be found unconstitutional. After all, the federal Guidelines are even more rigid and law-like than the ones struck down in Blakely, and the process of adopting them by Commission shouldn't make a difference, should it? If a legislature cannot adopt a set of rules itself, it seems senseless to give them the power to delegate rule-making to an unelected agency, even if they call that agency part of the judicial branch. I know that the Department of Justice and lower courts are straining mightily to draw a line here, but both sets of laws give a power to judges that the Sixth Amendment says belongs to juries. Do you think anyone on the Court might buy the distinction between legislation and guidelines? And if not, what if any kind of sentencing guidelines or rules might be acceptable after the Booker and Fanfan cases, or do we have to go all the way back to the bad old days of arbitrary, potentially discriminatory sentencing?

Berman: 9/27/04, 02:56 PM
You have told the back-story of Blakely and Booker and Fanfan quite well, although missing from the tale is the modern transformation of the purposes of sentencing. Historically, judges in both federal and state systems were given unfettered discretion to impose on defendants any sentence from broad statutory ranges for offenses in service to the rehabilitative "medical" model of sentencing. Broad judicial discretion in the imposition of sentencing termscomplemented by parole officials exercising similar discretion concerning prison release dateswas viewed as necessary to ensure that sentences could be tailored to the rehabilitative prospects and progress of each offender.

Significantly, the Supreme Court in 1949 constitutionally approved the use of lax procedures at sentencing in Williams v. New York by emphasizing the then-dominant rehabilitative "medical" model of sentencing. The court stressed that "[r]eformation and rehabilitation of offenders have become important goals of criminal jurisprudence," and the Court sought to foster "modern penological procedural policies" by ensuring judges have "the fullest information possible concerning the defendant's life and characteristics." The court noted that allowing judge's access to out-of-court information was grounded in "the belief that by careful study of the lives and personalities of convicted offenders many could be less severely punished and restored sooner to complete freedom and useful citizenship."

Though a reflection of its times, the Williams decision makes some sense: if the prosecutor, judge and parole board are all seeking to devise the least severe sentence to "cure" a "sick" offender, adhering to elaborate trial procedures might be more of a hindrance than a benefit to the person being sentenced. Just as patients are not thought to need "procedural rights" when treated by a doctor, defendants at the time of Williams were not thought to need such rights when sentenced by a "medical model" judge seeking to achieve the rehabilitative goals of sentencing.

But the substance of "modern penological policies" have changed drastically over the last 30 years. An integral part of recent sentencing reforms has been a repudiation of rehabilitation as the dominant purpose at sentencing. Modern sentencing laws, including many guideline sentencing systems and severe mandatory minimum sentences, are designed principally to deter and incapacitate and punish offenders. These structured sentencing reformswhich have tended to make sentencing more focused on offense facts and leave little room for judicial consideration of "the defendant's life and characteristics"have transformed sentencing decision-making into a trial-like enterprise. However, the procedures applied at sentencing have never been updated, even as recent reforms have made sentencing more like a traditional trial concerning the defendant's criminal conduct.

Thus, though not discussed expressly in these terms, I view the Blakely decision as a by-product of the reality that jurisdictions reformed the substance of their sentencing laws without making needed reforms to sentencing procedures. Blakely reflects the fact that, in a world in which sentencing is about punishing and no longer about curing, we should no longer rely on lax procedures at sentencing. Viewing Blakely in this wayespecially since, as you rightly note, the "the federal Guidelines are even more rigid and law-like than the one struck down in Blakely"I do not expect the purported "administrative" nature of the federal Guidelines to be their saving grace.

In short, I expect the Supreme Court will apply Blakely to the guidelines in Booker and Fanfan. But how the Court explains and defends this decision will be critically important for giving legislatures guidance as to how they can devise procedurally proper and constitutionally sound sentencing systems. I do not think we are headed back to the "bad old days," but I do think the Court has a lot of work to do in order to make sure legislatures clearly understand the reach and limits of Blakely so that sentencing reform can keep moving forward.

Interestingly, I think two Justices who dissented in Blakely Justice Anthony Kennedy and Justice Stephen Breyerhave had the longest and deepest interest in modern sentencing reforms. (Recall that Justice Breyer was on the original US Sentencing Commission that wrote the federal Guidelines and that Justice Kennedy gave a provocative speech to the American Bar Association last year calling for major reforms to sentencing laws and policies.) Do you think one or both of these Justices might join forces with the Justices in the Blakely majority to help guide the evolution of our new constitutional jurisprudence of sentencing?

Bibas: 9/28/04, 12:04 PM
You're right that sentencing has become less of a therapeutic diagnosis and more of a factual adjudication of blame. The Court sees the need for more procedural safeguards, and that's why it will strike down the Guidelines. But the Guidelines already had a number of procedural protections built into them, even though they didn't require jury findings or proof beyond a reasonable doubt. Rather than insisting on a full-blown trial at sentencing, the Supreme Court should have left legislatures more flexibility to develop other procedures that would protect defendants' rights at sentencing. Jury trials have become so slow, cumbersome, and costly that prosecutors force most defendants to plea-bargain them away; if sentencing goes in the same direction, we can expect more pressure to plea-bargain away sentencing hearings entirely.

I don't think the Blakely dissenters are likely to switch sides now. Justice Kennedy is far too practical to toy with this novel sentencing experiment. He has also praised the Guidelines and decried mandatory-minimum sentences, but the most likely result of Blakely is that Congress will drop the guidelines scalpel and turn to the mandatory-minimum sledgehammer.

Justice Breyer may try to craft a more limited position that allows the Guidelines to survive, much as in Bush v. Gore he tried to broker a third way that would allow the Florida recount to continue. As a former professor of administrative law, he loves administrative agencies such as sentencing commissions, so that experts can figure out the right sentencing scheme. But that approach is at odds with Justice Scalia's democratic populism in Blakely. Justice Scalia is winning that battle and is not the sort of person to back down, and it is pure speculation that Justices Souter or Ginsburg will desert him at this point.

So the federal sentencing system is going down in flames. Will the Court get rid of the entire federal sentencing guidelines, or will it strike down only the part that lets judges raise sentences on their own and keep the rest in place? And does the Court really think that we can graft sentencing juries onto the remnants of the existing guidelines-how would that work? And what does this mean for the states that use looser, more flexible guideline systems?

Berman: 9/28/04, 06:09 PM
I concur that the line of cases culminating in Blakely has a troublesome "binary" quality. On one hand, some matters of relevance at sentencing are labeled "elements," in which case the full panoply of constitutional procedural rights are deemed fully applicable. But all other matters are labeled "sentencing factors," in which case few procedural rights apply. Instead of relying on the Sixth Amendment to regulate sentencing procedures in this binary way, I might have preferred the Supreme Court to have developed more nuanced sentencing regulations through the Due Process Clause in order to give legislatures (and sentencing commissions) "more flexibility to develop other procedures that would protect defendants' rights at sentencing."

But the Supreme Court may have felt compelled to render a dramatic ruling in Blakely because legislatures and sentencing commissions generally have not, on their own, developed procedures to protect defendants' rights even though they have, in your words, turned sentencing into "more of a factual adjudication of blame." You say that the federal "Guidelines already had a number of procedural protections built into them," but I wonder what protections you are referencing.

The federal Guidelines require judges to enhance sentences based on uncharged or even "acquitted" conduct that can be the product of hearsay allegations which become known to a defendant only when the allegations appear in a (post-plea) presentence report. Last week the Wall Street Journal had a front-page article entitled "Reasonable Doubts: How Judges Punish Defendants For Offenses Unproved in Court," and the lead captures the article's compelling case-studies in federal sentencing: "Laurence Braun learned the hard way that being acquitted of a crime doesn't always stop you from being punished for it."

I am intrigued by your thoughts on Justices Kennedy and Breyer. You are right that Justice Kennedy has praised the guidelines, but in a dramatic speech to the ABA last year he said, "Our resources are misspent, our punishments too severe, our sentences too long.... The Federal Sentencing Guidelines should be revised downward." Because I think both Justices Kennedy and Breyer are "practical-minded," I believe they could possibly write a well-crafted majority opinion applying Blakely to the guidelines which, through textured and potent reasoning and rhetoric, actually lays the foundation for rebuilding a more just and effective federal sentencing system.

Bibas: 9/28/04, 06:44 PM
So how can we rebuild "a more just and effective sentencing system," as you call it? I think Justice Scalia has in mind full-fledged jury trials at each sentencing. But as I've already explained, our plea-bargain-addicted system will simply get defendants to bargain these rights away. At most, the rights will simply give defendants more bargaining chips with which to bargain for lower sentences.

But Congress will not like that result and has little sympathy for defendants. Nor does it trust judges. The Department of Justice will point to some very low sentences that juries or judges award, and Congress will react by jacking up penalties and giving prosecutors even more plea-bargaining leverage. Justice Breyer's Blakely dissent was all about this danger, and neither he nor Justice Kennedy will want to provoke that sort of reaction.

I think that, when academics cheer Blakely, they envision the emergence of a Platonic ideal of sentencing, one in which juries find facts and legislatures trust judges with a fair amount of discretion, though not as much as in the bad old days. Many state sentencing commissions have gone that way, but I don't think the feds will. States face significant cost constraints that keep them from always escalating sentences, whereas the feds don't (prisoners represent a tiny fraction of the federal budget). There simply are not enough checks to limit Congress's response, and I think the Blakely dissenters are all too afraid of Congress's reaction.

My instinct, then, is that the Court will not unite around a compromise, but rather polarize further. The logical extension of Apprendi and Blakely is that judges may not find facts that raise punishment at all, at least if they do so openly and candidly as part of a determinate sentencing system. In a bizzare turn, they can do the same thing if they cloak it in the mists of a discretionary, indeterminate sentencing system. Or, at the other extreme, Congress can pass mandatory-minimum penalties that do not require any judicial factfinding. We are rushing to one extreme or the other, and I suspect it will be the latter. Things fall apart; the center cannot hold.

Berman: 9/29/04, 07:26 AM
As a fellow student of recent federal sentencing developments, I fully understand the sober mixture of pragmatism and pessimism that infuse your views. But, even from the ivory tower, I know that we cannot rebuild a more just and effective sentencing system if we do not even try or if we assume it is inevitable that our elected representatives in Congress will always be more interested in political rhetoric than in sound sentencing policy.

Of course, I agree that plea bargaining is pragmatically inevitable; but giving defendants one more bargaining chip seems long overdue in a sentencing era in which prosecutors now have so many more chips. Moreover, we must always be mindful of the limits of (necessarily short-term) pragmatic calculations in the development of enduring constitutional principles. As Professor Al Alschuler adroitly highlights in a forthcoming article in the Federal Sentencing Reporter:

The answer to the question, "Does the Constitution entitle defendants to have the facts that make them eligible for increased sentences determined by juries beyond a reasonable doubt?," cannot be, "Yes, if wise leaders in Congress are likely to respond by approving guided discretionary sentencing or the submission of some sentencing issues to juries, and no if those yahoos are likely to enact new mandatory minimum sentences."

As you rightly note, the states have gotten a lot closer to a more ideal set of sentencing policies in large part because cost constraints mean they cannot afford to simply lock everyone up forever. In fact, there is a now well-established trend in the states to cut back on harsh mandatory sentences, and this trend is being driven largely from Republican quarters. In states as diverse as Alabama, Maryland, Michigan and Texas, Republicans have been leading proponents of a modern sentencing shift away from harsh visions of retribution toward a more refined focus on rehabilitation.

I am not entirely optimistic that the Supreme Court in Booker and Fanfan can help re-shape Congressional perspectives on these issues. But it was Justice Kennedy in his Blakely dissent who emphasized that "dynamic and fruitful dialogue between the judicial and legislative branches of government ... has marked sentencing reform" over the past two decades. I sincerely hope he recognizes and seizes the opportunity he has in Booker and Fanfan to be a leading voice in the continuation of this critically important institutional dialogue.

Bibas: 9/29/04, 08:18 PM
Okay, so let's switch from my pessimistic forecast to some more optimistic possible outcomes once the Blakely demolition crew is done and the dust clears. One possible benefit is that sentencing schemes cannot possibly remain as complicated as the federal one is, because no one can expect jurors to read and apply the multi-volume Guidelines manual. Instead of trying to quantify every possible fact in a case, sentencing rules might focus in on a few simple, common-sense factors. For example, in a robbery, the main questions might be: Did the defendant have a gun? If so, did he fire or use it? And if so, did he injure or kill anybody? How much money did he take?

This approach trades mathematical precision for a pretty simple, straightforward focus on the objective badness of the crime. We currently define armed robbery as worse than simple robbery; it is not that hard to treat armed-robbery-plus-injury as an aggravated version of armed robbery, and so on. Because the system would be less precise, it would return somewhat more discretion to federal judges. This could be a good or a bad thing, depending on how much one trusts judges and how much one fears racial discrimination and arbitrariness. But it would still tailor sentences more narrowly than under the old zero-to-twenty-years system. Prosecutors could plea-bargain by choosing to charge one robbery offense or another, but they would have less power to manipulate sentences than they do under the post-Blakely system, in which they can rig up whatever sentence they want simply by manipulating what sentencing factors they include in the indictment.

The key component of a better system would be moderately more judicial discretion coupled with appellate review. More discretion would let sentencing judges tailor each punishment to fit the crime and the criminal, but the benchmark or guideline sentence would still serve as a mental anchor or average. Courts of appeals, which are more detached and know sentencing judges' reputations, could ensure consistency across judges by reining in the hanging judges and watching over the lenient judges. Fear of appellate reversal is the best way to keep sentencing judges reasonably consistent.

Berman: 9/30/04, 10:45 AM
I am very pleased we are now ready to roll up our sleeves and get to work on a "more just and effective federal sentencing system." I completely agree that an improved system should (1) simplify the existing federal sentencing process, (2) give sentencing judges moderately more judicial discretion, and (3) rely on appellate review to help ensure reasonable consistency in sentencing outcomes.

However, as with all good ideas, the devil is in the details: we have to figure out who can and will chart the path to such an improved system, how we will get there from where we are now, and what the specifics of such a system will look like. These are all extremely challenging questions at this historic moment in the history of sentencing reform.

Critically, the improved system we envision would be entirely consistent with Sentencing Reform Act passed by Congress 20 years ago-indeed, I think such a system would be more consistent with the goals and provisions of the SRA than the Guidelines we currently have. Thus, Congress would not have to pass any new statutes to enable our new and improved sentencing system to become a reality.

The institution that is truly essential in any reform effort is the U.S. Sentencing Commission. Unfortunately, the initial Commission in 1987-largely under the direction of then-Judge Stephen Breyer-did not create a modest set of guidelines reflecting the basic sentencing norms you highlight. Instead, the initial Guidelines were lengthy and highly detailed, stunning in their overall complexity: the first Guidelines Manual ran more than 200 pages and contained over 100 multi-section guidelines. It described an intricate nine-step sentencing process, which culminated in the determination of an offender's applicable sentencing range from within a 258-box grid called the "Sentencing Table." And, partially as a result of congressional intermeddling, the Commission has made more than 600 amendment to the Guidelines over the past 15 years.

Interestingly, in a speech five years ago now-Justice Breyer lamented that the "Guidelines are simply too long and too complicated. There are too many words, too many provisions, too many distinctions." I am very hopeful that, through a potent and nuanced decision in Booker and Fanfan, Justice Breyer can help chart the course for improving a federal sentencing system that we all believe can be and needs to be improved.

Bibas: 9/30/04, 07:39 PM
You're absolutely right. The over-detailed, hypertechnical, completely mathematical language and the sheer volume of the Sentencing Guidelines manuals have drawn widespread criticism. The 258-box grid is a particular target, as it falsely suggests that we can tailor the Guidelines finely enough to fit each possible combination of factors. Moreover, the mathematical emphasis of the Guidelines draws judges away from the common-sense moral language of guilt and blame. Rather than explaining why an offender deserves a sentence, a judge need only read a series of dry computations that fail to express the wrongness of the crime or what the offender deserves.

There is an institutional barrier to change, however: the United States Sentencing Commission. When it was enacted, reformers hailed it as a model of the kind of neutral expertise that Justice Breyer loves. But the Commission never got off on the right footit started out secretive instead of soliciting input from a variety of lawyers and interested parties. And it kept making the Guidelines more and more complex, deaf to criticisms of their rigidity. Moreover, reformers had hoped that Congress would trust the Commission to make fair rules. But time and time again, Congress has stepped in and suggested or ordered the Commission to change the rules in particular ways. This is Congress's prerogative, after all, as the elected legislature. But it belies the myth that the experts will come up with and implement a better solution than the people themselves.

In short, the Commission as it currently exists seems to do little goodwe might as well just have a congressional subcommittee write the rules. But the Supreme Court's ruling probably won't abolish the Commission, meaning that the same flawed Commission will try to pick up the pieces. My fear is that the Commission is still wedded to its old model. Many state sentencing commissions have done a much better job by soliciting and incorporating comments from a wide variety of people, but I don't see how the feds will get there from here.

Berman: 10/1/04, 09:11 AM
I am very pleased to wrap up this discussion by noting that we have come full circle and, in my view, appropriately re-focused the question that spurred this debate. Legal Affairs asked the question "Can the Court clean up its Blakely mess", but I do not think the Supreme Court should be blamed for "its" mess. As our last few posts highlight, the often misguided efforts of Congress and the U.S. Sentencing Commission are more responsible for the messy state of federal sentencing law that we now have.

Just yesterday, the Minnesota Sentencing Guidelines Commission issued a report on Blakely's impact in the North Star State; the Commission explained that its "analysis of the Blakely decision on sentencing in Minnesota indicates that there is limited impact." The impact of extending Blakely's procedural protections to defendants in Minnesota is limited-that is, the Minnesota mess is not so severe-in part because Minnesota has a guideline system far closer to the ideal we sketched out earlier this week.

In other words, I fear we are blaming the messenger when we assail the Supreme Court for making a mess with Blakely. Congress and the Sentencing Commission have created harsh, rigid sentencing laws that many judges rightly complain take the humanity out of the sentencing process. I am not confident that the extension of Blakely to the federal system will bring humanity back to federal sentencing, but I am confident that we should not be troubled by the demolition of a system that is flawed in so many ways. In my view, the Blakely earthquake is to be praised, not cursed, because it may (and should) bring down a federal system which was poorly constructed from the outset. Like you, I fear that Congress's re-building effort might lead to a more grotesque and unjust federal sentencing structure, but I am the eternal optimist when it comes to believing that our leaders will always want to and always try to do better.